What do you know?
Fred Dibnah's heirs had to dig themselves out of a hole after the famed steeplejack disinherited his wife in his last will. The Dibnah bust, pictured, is in the Bolton Museum.
Photo: Bolton Council
What do you own?
Who do you want to leave it to?
Who are you?
Wills can be challenged on the grounds that the testator lacked mental capacity - and in our ageing population, more and more wills are being challenged.
And it is not only the wills of the elderly that are challenged on the grounds of testamentary capacity.
Illness, accident and alcohol are leading causes of mental incapacity.
There is no sharp line between mental capacity and incapacity and, correspondingly, courts sometimes struggle to arrive at a just conclusion. However, a will can be valid even if the testator did not enjoy full capacity at the time the will was made.
Who are you? Who are they?
Illusions, delusions, confusions - the mere existence of one or more of these factors does not in itself mean that the person is incapable of making a valid will.
If you make a will during a period in your life when you seriously believe that your milkman or your local MP is the Devil Incarnate, your will may be valid: your delusion may not affect the gifts in your will. However, if you exclude your son or daughter from your will or leave them a derisory amount because you believe they are Satan in disguise, this kind of delusion may leave your will open to challenge.
Who gets the roller? Who gets the rolling pin?
John O'Quinn had a mighty collection of valuable cars (such as the Rolls-Royce pictured) and big plans for them: after he went to his final resting place, they would go to their final resting place, a museum he intended to build. Sadly, he died suddenly (ironically but perhaps not surprisingly in a car crash) and his plans were not implemented. He had left a will so his wishes, at least in that respect, were carried out. More information on O'Quinn is in the Cars page.
"Early onset" - a phrase to conjure with.
Dementia is no respecter of age. True, it mostly afflicts the elderly. But Alzheimer's, Parkinson's and similar diseases can hit people who have barely reached middle age. In 2007, prolific English novelist Sir Terry Pratchett announced that he had Alzheimer's Disease. He had not yet celebrated his 50th birthday.
Accidents, alcohol and drugs - medicinal as well as recreational - can also impair mental functioning prematurely.
A few years ago, a man died leaving his entire estate - some ten million pounds - to the Conservative Party. Tory delight was short-lived, however. His son, who had been his beneficiary in earlier wills, claimed in court that his father had been mentally unbalanced. He did not argue that supporting the Tories is by itself evidence of an unbalanced mind. Rather, his father believed that his relatives joined a dark international conspiracy against him. His delusions fatally tainted his will.
In contrast, another man plagued by delusions was allowed to exclude his son and leave his entire estate to his niece. This man believed that he was being pursued by evil spirits, including one he linked to a man he knew to be dead. Doctors tried to cure him but his delusions persisted even to the time he wrote his will. In his judgement, the judge noted the man's persistent mental problems but nevertheless concluded that the nature of his delusions did not prevent him from having sufficient clarity regarding his will.
This case, Banks v Goodfellow, was decided in 1870 and is still the main legal precedent governing mental capacity. Indeed, it helped decide the 2005 case that overturned a large gift from one Branislav Kostic to the Conservative Party.
Grey Area for Grey Matter
The dividing line between testamentary capacity and testamentary incapacity is not necessarily precise or clear cut.
Some people are clearly beyond the pale mentally and intellectually, but many fall into a large and amorphous twilight area between testamentary capacity and incapacity.
So far as will-making is concerned, a testator may be seriously impaired mentally but still have access to a window of opportunity to make a valid will. An individual may be capable of making a simple, but not a complicated, will. Or they can make a valid will even though they may be incapable of making business or financial decisions or deals.
An individual can suffer from delusions, but if the delusion is irrelevant to the will, it may not affect the will or a gift within the will.
Many good reasons for getting it right
If you are perfectly sound in mind and body, you should have no difficulty finding a qualified solicitor to make a perfectly valid will for you.
If you are less than perfectly compos mentis, getting a valid will is harder but not impossible - and worth the extra effort.
You want your gifts to go to the people you mean to benefit, and in the amounts or proportions you intend.
Importantly, you also want to avoid a lawsuit, even if your side eventually wins. Court cases are costly, win or lose.
Banks v Goodfellow
Courts often have to try to determine what was going on in the mind of the testator when he or she drafted their will.
Judges still rely on the 1870 Banks v Goodfellow and the three main tests proposed by the judge.
• Did the testator understand that, by signing this document, they were making a will - and that in doing so, they were giving away their assets when they died?
• Did the testator broadly know what they owned?
• Did the testator consider the people they were including in the will - and also excluding - and why?
“It is essential to the exercise of such a power that the testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of which, if the mind had been sound, would not have been made”.
Banks v Goodfellow (1870)
In Banks v Goodfellow, the court decided that the testator was indeed delusional, but his delusions did not prevent him from understanding what he was doing with his will. The will was declared valid.
Golden - and other - Rules
In 1977, Justice Templeman proposed (in Re Simpson) a golden rule to increase the chances of an elderly person making a valid will: a doctor should examine old or frail or ailing testators to determine their mental capacity to make a will.
For the doctor, such testamentary examinations involve more than a superficial once over; they are not the will-writing equivalent of a sickie. A specialist such as a psychiatrist may have to be brought in - and the doctor may need to read the testator's current and previous wills. The doctor may need to inquire about the testator's personal and familial life.
With vulnerable testators, solicitors also have additional responsibilities. To guard again undue influence and other forms of wickedness, a solicitor should speak with a testator alone, out of the presence of actual or potential beneficiaries.
The 'Golden Rule'
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and finding.
There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator, and if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator. These are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined and great expense and misery may be unnecessarily caused.”
Justice Templeman, Re Simpson